02/04/97 BRETT LONGFELLOW v. J.D. COREY

February 4, 1997

BRETT LONGFELLOW, A MINOR CHILD, BY HIS MOTHER AND NEXT FRIEND, HOLLY LONGFELLOW, AND HOLLY LONGFELLOW, PLAINTIFFS-APPELLANTS,v.J.D. COREY, TERRY NAPPER, AND URBANA SCHOOL DISTRICT NO. 116, DEFENDANTS-APPELLEES.

In November 1994, plaintiff, Holly Longfellow, individually and as the mother and next friend of Brett Longfellow, a minor, sued defendants, Urbana School District No. 116 (School District), Terry Napper, and J.D. Corey, in an action for personal injuries. In May 1996, the trial court determined that defendants were immune from liability pursuant to section 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/3-108(a) (West 1992)) and dismissed plaintiffs' second-amended complaint with prejudice. Plaintiffs appeal from that dismissal, and we reverse and remand.

I. BACKGROUND

In February 1996, plaintiffs filed a second-amended complaint alleging that on December 1, 1993, Brett (then eight years old) was a student in an after-school child care program at Wiley Elementary School in Urbana, Illinois. Defendant School District operated the after-school program. The School District employed defendant Napper as the site coordinator and defendant Corey as a recreational leader for the program. The second-amended complaint alleged that on December 1, 1993, Corey "directed [Brett] to participate in a game of tag requiring [Brett] to have a piece of cloth in his pant's back pocket and to be pursued by [Corey], for the intended purpose of avoiding [Corey] from removing the piece of cloth from [Brett's] pant's back pocket." At Corey's direction, Brett ran backward across the gymnasium floor while Corey ran toward him. The complaint further alleged that (1) Corey was "significantly" taller and faster than Brett; (2) Corey had a "longer foot span and longer gait"; (3) Corey was "running full speed facing straight at" Brett as Brett ran backward, mirroring Corey's movements; (4) Corey was able to change direction more quickly than Brett; and (5) Brett was pushed beyond his normal capabilities by Corey's actions. The complaint further alleged that "as a direct and proximate result" of Corey's conduct as an active participant in the game, Brett tripped while running backward and fell, suffering injuries to his mouth and teeth.

Defendants moved to dismiss the second-amended complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1992)). They claimed that "all counts of the plaintiff's [sic] second[-]amended complaint are based upon allegations that the defendants failed to properly supervise the activities" of Brett, and therefore, section 3-108(a) of the Act immunized them from liability from any claim of negligence or wilful or wanton conduct based on supervision of an activity.

In May 1996, after considering the parties' motions and arguments, the trial court granted defendants' motion and dismissed the second-amended complaint with prejudice. The court specifically found that "there is no qualitative difference between the 'participatory' activity argued by plaintiff[s] to be present here and the activities involved in supervising encompassed by [section 3-108(a) of the Act]."

II. SECTION 3-108(a) IMMUNITY

Plaintiffs argue that section 3-108(a) of the Act does not provide immunity in this case where "the cause of action in question rests squarely on the active participation by an adult in a children's game, not on a failure to adequately supervise a children's game." Plaintiffs contend that section 3-108(a) of the Act is specifically limited to situations in which a failure to "oversee" an activity results in injury and does not extend to situations in which "participatory" conduct proximately causes the injury. In response, defendants argue that even though the second-amended complaint did not specifically allege a "failure to supervise," the facts alleged therein constitute nothing more than supervision.

The purpose of a section 2-619 motion to dismiss is to provide a means to dispose of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735, 189 Ill. Dec. 31 (1993). In the present case, the ground advanced for dismissing the complaint is that the claims asserted therein are barred by a defense that completely negates the asserted causes of action. Payne v. Lake Forest Community High School District 115, 268 Ill. App. 3d 783, 784-85, 644 N.E.2d 835, 836, 206 Ill. Dec. 67 (1994); see 735 ILCS 5/2-619(a)(9) (West 1992). The trial court should grant the motion and dismiss the complaint if, after construing the allegations in the light most favorable to the plaintiff, no set of facts can be proved that would entitle the plaintiff to recover. Payne, 268 Ill. App. 3d at 785, 644 N.E.2d at 836. When reviewing the propriety of the trial court's decision to grant a section 2-619 motion, the reviewing court must accept as true all well-pleaded facts alleged in the complaint. Payne, 268 Ill. App. 3d at 785, 644 N.E.2d at 836. We review the trial court's ruling on the defendants' section 2-619 motion de novo. Payne, 268 Ill. App. 3d at 785, 644 N.E.2d at 836.

In the present case, defendants relied upon the immunity provided by section 3-108(a) of the Act, which reads as follows:

"(a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of ...

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